On Hiring an expert WITNESS
Murray Analytics has extensive experience in litigation support across a wide variety of venues and in collaboration with numerous law firms and regulatory agencies. The guidance below is presented to assist in the selection and engagement of an expert witness.
Retain an expert as soon as is practicable. If possible, time the retention so that the expert can assist with discovery. As a result of the expert’s experience with the subject matter, he/she will have unique insights regarding what documents to request. The benefit of receiving input from the expert during the discovery period far exceeds any likely incremental cost of an early retention.
Timing of Retention
Depending on the matter and the expertise required, a potential expert could have a wide range of prior experience serving as an expert – from none to extensive. Some indicators of experience level include:
Number of times retained as an expert;
Number of expert reports issued;
Number of expert depositions given;
Number of trials in which the expert testified;
Number of wins, losses, settlements, and pending matters;
Forums in which the expert has experience, such as Bankruptcy Court, Tax Court, Delaware Chancery Court, jury trials, FINRA arbitrations, or others;
Law firms and regulatory bodies with whom the expert has worked in the past; and
Any instances of disqualification.
Prior Experience as an Expert
Ensure that the expert is not only a good expert, but is also the right expert for your particular matter. We suggest the following methods for making that determination:
Ask the expert to review a complaint or a written/oral summary of the case and ask what he/she believes to be the core subject matter expertise required to successfully testify.
Elicit whether the expert has that core subject matter expertise as a result of prior work experience and/or prior engagements.
Discuss whether the expert is familiar with any industry authorities/trade associations that may be helpful for the case, and if not, how the expert would go about finding such authorities and/or trade associations.
Inquire as to whether the expert has ever testified and/or been retained with respect to the relevant expertise before, what the cases and issues were, and what result was achieved.
Ask if there are any potential weaknesses with respect to the expert’s suitability for your particular case, and if so, what those weaknesses might be.
Review a list of the expert’s prior cases.
Assess if the expert’s prior engagements and results support a finding that the expert’s report and testimony would be deemed credible. If the expert traditionally advocates for a particular type of client (for example, always represents investors in matters adverse to private equity firms), determine how this might impact the credibility of his/her work in your case.
Specific Qualifications of the Proposed Expert Given the Subject Matter of the Case
Elicit whether the expert has any particular preliminary views on the issues arising in the case. For example, inquire what the expert’s general understanding is as to the industry custom and practice relevant to the matter.
Expert’s Views on the Issues Arising in the Case
Determine whether the expert’s style in presenting to you will suit the needs of your case.
Determine the manner in which you would want your expert to present to a judge or jury, then evaluate whether the expert’s skill set matches your needs.
Ask if there are reports, testimony, and/or opinions in the public domain that can be reviewed.
Ascertain that the expert and the client understand each other’s expectations and requirements in producing the desired work product, particularly as it relates to the following:
Budgeting the engagement;
Expert’s typical approach to a matter once retained, especially with respect to timing, sequencing, and work product delivery;
Delegation of work among the expert’s team members;
Billing rates for the expert and team members;
Average billing rates on historical engagements;
Ability of the expert and team to complete the task in the time allotted; and
Calendar availability for the matter and general expected workload during the pendency of the case.
Execution and Budgetary Issues
Speak with other attorneys that have worked with the expert. In checking references, consider which of the expert’s prior cases are most important to you in assessing whether the expert is suitable for your matter.